Mental Health Law and Legal Rights (14:IV)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 18, 2021.

A. Income Assistance

Mentally ill persons may be eligible for benefits under the “Persons with Disabilities“ (PWD) or “Persons with Persistent and Multiple Barriers to Employment“ (PPMB) designations. Qualification requirements are strict, but decisions concerning eligibility can be negotiated with the Ministry of Employment and Income Assistance, and, if need be, appealed. Generally, a doctor must fill out a specific form indicating that the person qualifies. Disability Alliance BC assists with applications and appeals (for further details, see Chapter 21: Welfare Law). There may be strict deadlines for these applications, so it is important to avoid delay in these cases.

B. Employment/Disability Income

If a person cannot work because of mental health issues, the person may be entitled to employment insurance, disability benefits, or CPP disability benefits, or WCB benefits if the mental illness is work related. For information on CPP disability benefits, see Section IV.D: Canada Pension Plan, below. Please be advised that there are strict time limits involved when applying for these benefits.

If a person is hospitalized in a psychiatric facility because of an injury at work, they may be eligible for WCB benefits. Please contact the Workers Advisory Group through CLAS for more information, or refer to Chapter 7: Workers' Compensation.

C. Employment Insurance

Individuals who are voluntarily or involuntarily admitted to a psychiatric facility may still be eligible to collect Employment Insurance benefits. However, the Employment Insurance Act, SC 1996, c 23 is a complex piece of legislation, detailing numerous requirements to qualify for benefits (e.g. number of hours worked, previous claims, unemployment rate, etc.). If a person is denied benefits, it is best to consult a lawyer with specific expertise in these areas (e.g. CLAS). Be aware that there may be strict timelines in applying for benefits or appealing a denial of benefits. For more information, please consult Chapter 8: Employment Insurance.

D. Canada Pension Plan

Long-term patients may apply for disability pensions. A claim takes four or five months to process. Hospitalization does not affect a person’s right to collect a pension and it is possible to receive CPP benefits for periods of hospitalization. Disability Alliance BC assists people with these applications if they reside in the community. Those who are hospitalized should contact the hospital social worker to assist with these applications as soon as possible, as strict time limits may apply.

E. Driving

A mental disorder does not automatically disqualify a person from driving. The Superintendent of Motor Vehicles—or a person authorized by the Superintendent—has the discretion to deny licences to those deemed “unfit” under section 92 of the Motor Vehicle Act, RSBC 1996, c 318. This decision is based on the Canadian Council of Motor Transport Administrators (CCMTA) Medical Standards with BC Specific Guidelines (available online at [1]). Each section describes the medical condition(s) under evaluation, the potential effect of the condition(s) on driving ability, and guidelines for assessing driving ability.

Chapter 6 of the Guidelines discusses cognitive impairment (including dementia), while Chapter 14 addresses psychiatric disorders. The national standard allows those with psychiatric disorders to hold a license if their condition is stable, if they possess the insight to stop driving if their condition worsens, and if the faculties required to drive safely are not impaired. The BC Guidelines add that RoadSafetyBC can request a Driver’s Medical Examination Report and additional medical information from the individual’s doctor or mental health team. The Guidelines also set out the conditions for maintaining a license, for reassessment if a license is lost, and the information that will be sought from health care providers during an assessment.

It is important to note that individuals who have been hospitalized due to a mental health issue must stop driving and report to RoadSafetyBC. Those who suffer a psychotic episode may have to undergo annual re-assessment until their doctor reports that the episodes have abated enough to resume driving. While assessments must rely primarily on clinical evaluations, re-assessment intervals may be determined on an individual basis by RoadSafetyBC. The assessment guidelines, as well as their rationale, can be reviewed online at https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/roadsafetybc/medical-fitness/medical-prof/med-standards/14-psychiatric#14.6.1.

A review of a driver medical fitness decision can be requested at no cost in the event that a medical condition has changed or improved. RoadSafetyBC’s adjudicator or a nurse case manager will consider any information provided, but an up-to-date medical assessment from a physician is required.

F. The Right to Vote

Both voluntary and involuntary patients in mental health facilities have the right to vote. This has been the case since Canada (Canadian Disability Rights Council) v Canada (1988), 3 F.C 622, where it was decided that a person is not disqualified from voting on the basis that a committee has been appointed for them. Polling stations are normally set up at long-term psychiatric care facilities; because enumeration also takes place at the facility, patients must vote in the riding where the hospital is located.

G. Human Rights Legislation

Under both provincial and federal human rights legislation, it is illegal to discriminate against a person in the protected areas of housing/tenancy, employment, or services customarily available to the public on the basis of mental illness. For information on launching a human rights complaint, see Chapter 6: Human Rights.

H. Civil Responsibility

In general, mental incompetence or disability is not a defence to an action for intentional tort or negligence. However, where a certain amount of intent or malice is required for liability, the fact that the defendant lacked full capacity to understand what they were doing may relieve them of liability. A defendant lacking the ability to control their actions will not be liable. Involuntary actions do not incur liability. Anyone responsible for the care of a mentally ill person may be held responsible if the plaintiff proves a failure to take proper care supervising the person.

In civil suits, a guardian ad litem may be appointed with permission of the court (can be petitioned by a lawyer) to start or defend an action where a mentally ill person is a party and lacks the capacity to commence or defend that action. A person involuntarily detained under the MHA appears to meet the definition in the BC Supreme Court Rules of Court of a person under a legal disability for filing or defending a court action. Therefore, the person would need to proceed through a guardian ad litem. The guardian ad litem could be a friend or a relative of the person, an organization, or another individual chosen and appointed by the court.

Additionally, any person found not criminally responsible by reason of a mental disorder under the Criminal Code may not be liable for damages as a result of the offence.

I. Immigration and Citizenship

Section 38 of the Immigration and Refugee Protection Act [IRPA] deals with inadmissibility on health-related grounds. Pursuant to s 38(1)(c), foreign nationals will be inadmissible if they “might reasonably be expected to cause excessive demand on health or social services.” This rule could present a bar to admission for individuals determined to be developmentally delayed or those with a history of mental illness.

However, s 38(2) lists certain exceptions. If a person may be classified as (a) a member of the family class and the spouse, a common law spouse, or a child of a sponsor; (b) a refugee or a person in similar circumstances; (c) a protected person, or; (d) where prescribed by regulation, one of their family members, that person will be exempted from the rule under section 38(1)(c).

Section 38(b) of the IRPA sets out that another bar to admission is the likelihood that a health condition could cause danger to public safety. Unlike section 38(1)(c), this provision is not subject to the exemptions under section 38(2). According to guidance used by IRCC staff, mental health conditions are considered likely to cause danger to public safety when they involve uncontrolled or uncontrollable elements, such as:

• certain impulsive sociopathic behaviour disorders;
• some aberrant sexual disorders such as paedophilia;
• certain paranoid states’ or some organic brain syndromes associated with violence or risk of harm to others;
• applicants with substance abuse leading to antisocial behaviours such as violence, and impaired driving; and
• other types of hostile, disruptive behaviour.

This definitions, and others, can be sourced from the IRCC website.

J. The Charter

Sections 7 (the right to liberty), 9 (the right to protection against arbitrary detention) and 15 (the equality provision) of the Charter are particularly critical for protecting the rights of the mentally ill. The legal rights protection provisions may also be applicable, including section 12, which concerns cruel and unusual punishment.

The following decisions reflect the way that Charter rights have been considered when they conflict with provincial legislation regarding mental health.

Fleming v Reid, (1991) OR (2d) 169 at paras 52-59 addressed the impact of section 7 on provisions of Ontario’s mental health legislation. Mentally competent involuntary patients refused treatment despite their doctors’ opinion that treatment would be in their best interests. The impugned provision of Ontario’s Mental Health Act, RSO 1980, c 262 allowed a Review Board to override treatment refusals issued by a substitute consent-giver based on the patient’s prior competent wishes. The court held that this provision violated the right to security of the person and was not in accordance with the principles of fundamental justice. However, the disposition of this case has not influenced the application of BC's mental health legislation to date.

In Mazzei v British Columbia (Director of Adult Forensic Psychiatric), 2006 SCC 7 at paras 46-47 [Mazzei], it was decided that the Review Boards under the Part XX.1 Mental Disorder provisions of the Criminal Code of Canada have the power to issue binding orders to parties other than the accused. This power can be exercised on the director of a hospital who is party to the proceedings; although the Review Board cannot dictate a specific treatment, it can impose conditions regarding treatment. This power was granted to ensure that treatments are culturally appropriate. In Mazzei, conditions were imposed regarding drug and alcohol rehabilitation to ensure that the process was appropriately adjusted to the individual’s First Nations’ ancestry.

A more recent Supreme Court decision, R v Conway, 2010 SCC 22 at para 78 [Conway] responded to the issue of whether the Ontario Review Board (ORB) under the Mental Disorder Provisions of the Criminal Code has the authority to grant remedies under section 24(1) of the Charter. The challenge was brought by Paul Conway, an individual found not responsible by reason of a mental disorder in 1983. He argued that his treatment and detention violated his Charter rights, and therefore entitled him to an absolute discharge. The Supreme Court developed a test to determine whether an administrative tribunal is authorized to grant Charter remedies. The Supreme Court ruled that pursuant to section 24(1), the ORB is a “court of competent jurisdiction”, but that an absolute discharge was not a remedy that could be granted by the ORB under the particular circumstances. Ultimately, the Conway decision affirms the application of the Charter to administrative tribunals, including the Criminal Code of Canada', Part XX.1 (Mental disorder provisions) provincial Review Boards, which includes the British Columbia Review Board (BCRB). However, this decision limits the scope of available remedies under section 24(1) to those that have been specifically granted to a given body by the legislature. In Conway, the Review Board could make a determination that the provision was unconstitutional, but did not have the authority to strike it down.

A case in which CLAS acted as an intervener--(Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, (2012) 2 SCR 524 at paras 73-74) opened the door for groups of individuals to bring Charter challenges. In this case sex workers were granted public standing as a group to bring Charter challenges. This decision impacts mentally ill people as well by enabling patients that are detained in mental health facilities to bring Charter challenges as a group, rather than being forced to do so on an individual basis. Additionally, organizations can begin an action on behalf of a group of vulnerable people if there is no other way for the issue to be brought before a court.

K. Legal Rights of Those in Group Homes

Throughout the greater Vancouver area, there are many “group homes” run by and/or for mentally ill persons who do not require confinement in a provincial mental health facility. Additionally, "Supportive Apartments" are a new tool that the provincial government has been using. These homes, run by groups such as COAST and the Motivation, Power, and Achievement Society (MPA), are governed by the Community Care and Assisted Living Act, SBC 2002, c 75. Foster homes and group homes of the provincial government fall under different Acts: the Child, Family and Community Service Act, RSBC 1996, c 46 and the Hospital Act, RSBC 1996, c 200.

These types of homes have some interesting interactions with the Residential Tenancy Act, in that they may or may not be covered on a case by case basis. Because there is no definitive answer at this time, individuals in group homes with tenancy issues should contact CLAS or seek other legal assistance.

Municipalities often place restrictions on the location of group homes. A Winnipeg bylaw requiring a minimum distance between group homes was struck down for violating s 15 of the Charter (Alcoholism Foundation of Manitoba v The City of Winnipeg (1990), 69 DLR (4th) 697 (Man. C.A.)).

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